1805. ROE dem. Earl of BERKELEY against [93] only tenant for life, it operated to pass an interest during her life, and was not merely good by estoppel, like a lease by one who had no interest at the time in the premisses. It makes no difference then that she refers in the lease to her Abp. of YORK, power; for the principle is, That where a lease would be good to pass an interest, it shall not be good by estoppel : and here Mrs. Egerton professed to lease not only by her power under the will of John Lord Berkeley, but by any other power that she had. The distinction is between a lease void ab initio, and one only voidable: and all the books shew that the acceptance of a voidable lease for part of the same term which the tenant had before, will be a surrender in law of a good and sure lease in the same premisses. In addition to the authorities before cited are Shep. Touch. 300. 2 Rol. Abr. tit. Surrender, 495, pl. 6, 7, & 9; and 497, pl. 11 (which cites Whitley v. Gough, Dy. 140, pl. 43.) and Carey's Rep. 21. Anonym. The case of Mellows v. May (a), indeed, as reported in Croke, seems to go further, and say, that the acceptance of a void lease will yet extinguish a prior good lease: but it is differently reported in Moor: but there, through the second lease was holden voidable by the wife if she had survived her husband, yet it extinguished the prior lease. As to the cases which may be referred to contra, the first is that of Wilson v. Sir Thomas Sewell (b); where it is said to have been agreed, that if the second lease granted by the prior Master of the Rolls upon the surrender of a former lease made to him, were not good within the power of leasing granted by the stat, 12 Car, 2, then the acceptance of such second lease would not have implied a surrender of the former one: but that was an extrajudicial dictum; for the second lease was holden to be good; and therefore no question could arise on the revival of the first. The principal case then is Davison d. Bromley v. Stanley (c), which is either distinguishable from the present on the ground of fraud, or if not, is contrary to all the other authorities. There Mr. Bromley, being seised in fee, demised for 99 years from 1686; which lease must, according to common computation, have lasted beyond his life. He af (a) Cro. Eliz. 871. and Moor, 636. (4) 4 Burr. 1975-1980. terwards terwards, unknown to his lessee, converted his fee into an estate for life, reserving a certain power of leasing; and in 1693 granted a new lease to his tenant for 99 years, not made according to the power, without communicating to him the alteration in his estate. This therefore was a fraud upon the tenant. The only cases cited on this point, besides the last-mentioned, were Watts v. Maydwell (a), and Lloyde v. Gregory (b), which were cases of void leases granted pending prior good leases; and the attention of the Court was not drawn to the distinction between leases poid and voidable, nor were other material authorities referred to; Lord Mansfield there saying, That the acceptance of a new. void lease, or one that the lessee cannot enjoy, could not shew an intention to surrender the former good one, and would not operate as a surrender of it; and that the reason why it should be an implied surrender totally fails, with other like expressions, must be taken with reference to the facts of the case as applied to a case of deceit. But here there was no deceit. The lessee knew that Mrs. Egerton had only a limited power of leasing, and of course he must be taken to have known, that if the lease, were not made in pursuance of the power, it would only be good for her life: he therefore took the chance of her surviving the duration of the original lease, If it had been intended only to have made a partial or conditional surrender, it should have been so expressed. Arguments for the defendant. First, The mere cancelling in fact of an instrument, will not revoke or divest an estate once vested by transmutation of possession; but such estate must be conveyed by another deed. This is universally true of things lying in livery, according to Lord C. B. Gilbert (c); though it has been holden to be otherwise of things lying in grant; and even that was questioned by Lord C. J. Eyre, in Bolton v. The Bishop of Carlisle (d). So Bro. Lease, pl. 10. Moore v. Waldron (e). Dr. Leyfield's case (f), explained by Read v. Brookman (g); and Woodward v. Aston h); shew that a deed, though lost, destroyed, or can (c) Gilb. L. of Evid, 95, 6th edit. (a) Litt. Rep. 268, 279; and Hutt. 104. 1805. Ros dem. Earl of BERKELEY against Abp. of YORK. [94] [95] 1805. Roz dem. Earl of BERKELEY against celled by accident, may still operate to pass an estate or office. So a power of revocation in a conveyance at common law is void, though good in a conveyance to uses, Co. Lit. 237, a ; and the estate being in the feoffee, he must return it by an inAbp. of York, dependent conveyance; and it cannot be brought back again by a mere power of revocation of the first deed, and conse quently not by cancelling it. The statute of frauds can make no difference in this respect. The first section only says, That leases, &c. not by deed, shall only operate to pass an estate at will. But this was by deed, the subsequent destruction of which will not bring the case within that clause. But it is said, That the recital in the second lease of the surrender of the first, is a note in writing of the surrender within the 3d clause of the statute. But the recital of a surrender is not the surrender itself, which the statute requires to be by deed, or note in writing. The recital of one deed in another will not supersede the production of the deed so recited. Before the statute words, de præsenti, which shewed an intent to surrender instanter, would have been an actual surrender; and independent of the statute, this recital would have been evidence of a surrender; but now the surrender itself is required to be shewn in writing, unless where it is effected by operation of law. In Farmer . Rogers (a), the words in writing were stronger than here; viz. "I do discharge the premises," &c. the party meaning to do it by that very writing, which was therefore deemed an actual surrender in writing. But merely stating, as bere, that the second lease was granted "for and in consideration of the surrender of the first indenture,," only supposes a surrender to have been before made, amounting at most to an admission that there had been a surrender; but not even stating that such surrender was by writing, as the statute requires, the defendant is not estopped, as contended, by his deed from maintaining that the first lease was not surrendered, because every estoppel must be reciprocal, and bind both or neither of the parties. Co. Lit. 352, a and b. Brereton v. Evans (b), and Edwards v. Rogers (c); and here Lard Berkeley, being a stranger to the [ 98 j (•) 2 Wils. 16. (8) Cro, Eliz. 7co. (c) W. Jones. 456. deed, deed, cannot be estopped by it, and consequently the defendant cannot.. Secondly, The acceptance of a new lease, which is void under the power by which it is professed to be granted, cannot operate as an extinguishment in law of the first good lease. The authorities cited, shew that it cannot be so considered on the ground of merger; for that would operate universally; and there are several instances shewn where the first lease is not merged. It cannot so operate on the principle of estoppel, for the reason beforementioned: nor on the ground of considering the acceptance of the second lease as evidence of the surrender of the first; for that would be a question of fact for the jury to find; whereas, in many special verdicts, the question of extinguishment of the first lease has been left to the Court as matter of law, arising out of the other facts stated. Now the rule of law has confined the extinguishment of a prior good lease to cases where the second lease was good; at least for the purposes for which it professed to be made at the ime, though voidable afterwards by another; and the Court will not be inclined to carry the principle further against the real justice of the case. Here the second lease, considered as one made under the power, which it professes to be, is absolutely void, and not merely voidable. could not have been made good by the receipt of rent by the reversioner, though the defendant might thereby have become tenant from year to year. Doe v. Butcher (a). It could only have operated everf during Mrs. Egerton's life by estoppel; because the lessee being estopped as against his lessor, from saying that she had no power to lease, she was equally estopped from denying her own power. But here the remainder-man himself affirms, that the former tenant for life had no such power, and therefore does away the estoppel against the lessee. If a lessee accept from his lessor a second lease, whether for a longer or shorter period than the first, that may be a surrender of the first, provided the lessee take all the interest which the second lease purports to grant: and that will hold equally, according to the authorities, though the second lease were voidable, because till it be avoided, the whole interest which the lease (a) Dong, 50. It purports 1805. RoE dem. Earl of BERKELEY against Abp. of Yera. [ 97 ] 1805. Roz dem. Earl of BERKELEY against purports to grant is in the lessee; but if the lease be absolutely void, the interest which it purports to pass, never vested in the lessee. Here it is clear that the second lease, as a lease under the power, was absolutely void; though the lessee during the life of Mrs. Egerton was entitled to hold under it, because she was estopped from controverting her own deed against him; but it professes to grant a term of 98 years under the power, and that whole interest never passed to the lessee: and there is no authority to shew that a se cond lease, which did not pass, either absolutely or voidably only, the whole interest which is purported to grant, was [98] yet an extinguishment of a prior existing lease. On the contrary, all the leases cited for the plaintiff shew, that if the second lease. be void, and not merely voidable, it does not extinguish the first. One of the instances put in 2 Rol. Abr. 495, pl. 7, is of a lease by a dean and chapter, not conformable to the statute 13 Eliz. where, though it must be admitted that the lease would be so far good as to ensure to the lessee during the life of the dean who granted it, yet it was holden, That being void by the statute (as against his successor) it should not extinguish a prior good lease. That was resolved in the case of Flood v. Gregory, 13 Car. in a trial at bar; and with that agree Co. Lit. 45 (a), and 1 Brownl. 21. Mrs. Egerton, in this case, as the dean and chapter in that, had only a power of leasing on certain conditions, and those not having been complied with, the lease did not convey the utereset which it purported to do; and therefore though in both instances it would enure by estoppel to uphold the tenant's possession during the life of the grantor, yet it cannot operate to extinguish the former term. It is true that Mrs. Egerton had an interest to pass during her life, and so had the dean in the other case; but she does not profess to grant it out of her life estate, but for a long period under the power reserved to her by the will of John Lord Berkeley; and the very duration of the term granted, shews that such was her intention. Then, however a surrender of part of a term may operate as a sur (4) Mr Hargreave's note to p. 43, and note 4. to p. 45, were referred to in the reply as throwing some doubt on the application of these authorities to the present case, inasmuch as it appeared by a MS. note of Lord Hale, that at the period of the case referred to in Rolle's Abridgment, a lease yoid by the statute, was considered to be avoidable even by the dean who concurred in granting it. render |